The comment period was ordered by the Michigan Supreme Court and is one of the final steps leading to a rule’s adoption. The unsigned order said Republican-nominated justices Brian Zahra and David Viviano would have declined to move the rule forward.
At issue is whether plaintiffs, defendants, witnesses and others can choose how they will be identified in court proceedings.
Angie Iglesia Martell chairs the State Bar of Michigan’s LGBTQ law section and identifies as both “she” and “they.” She told Michigan Public Radio the proposed rule would align with Michigan’s Code of Judicial Conduct, which requires both judges and court staff to treat litigants with courtesy and respect.
“So if someone identifies with a ‘she’ pronoun and the judge keeps calling them with a ‘he’ pronoun, that could feel unsafe,” said Martell. “That is not the ethical responsibility that the judge should have if you’re to give the litigants fairness and dignity and respect.”
The proposal follows a non-binding minority opinion last year from Michigan Court of Appeals Judge Mark Boonstra, who said litigants should have to stick with identifying as male or female.
“I decline to join in the insanity that has apparently now reached the courts,” Boonstra wrote in a December 2021 concurring opinion in a criminal case:
Once we start down the road of accommodating pronoun (or other) preferences in our opinions, the potential absurdities we will face are unbounded. I decline to start down that road, and while respecting the right of dictionary- or style-guide-writers or other judges to disagree, do not believe that we should be spending our time crafting our opinions to conform to the “wokeness” of the day.
Comments on the proposed rule are being accepted through May 1. Here’s a link to the order.
The Michigan Supreme Court will also hold a public hearing before a final decision on whether to adopt the new rule.